|
HCAL 2971/2019
[2025] HKCFI 3227
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2971 of 2019
| BETWEEN |
|
|
|
Guanzon Melanie Tolentino |
1st Applicant |
|
Balles Ezra Jelaine |
2nd Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and
|
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicants:
Introduction
1. This is the Applicants’ application by Form 86 filed on 9 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 30 September 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 22 January 2019 (the “Notice”), refusing their application for non-refoulement protection. She named the Director and the Board as respondents and further named the Board as putative interested party.
2. The Applicants are Filipino nationals, now aged 49 and 7 respectively. The 1st Applicant is a Roman Catholic. She first came to work in Hong Kong in 2010. In 2015, she developed a relationship with her boyfriend, who is also a Filipino. She last entered Hong Kong on 30 April 2017 to work as a domestic helper. She gave birth to her daughter, ie the 2nd Applicant, on 31 May 2018. She overstayed since 4 July 2018. She surrendered to the Immigration Department on 18 July 2018 and was released on recognizance. Her daughter was granted recognizance on 2 August 2018. She made a claim for non-refoulement protection for herself and her daughter by way of written significations dated 2 August 2018 and 11 September 2018.
3. In due course, their claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their application was rejected by the Director’s Notice. Their appeal against the Notice was dismissed by the Board’s Decision. They now seek leave to judicially review that Decision.
Legal representation for the 2nd Applicant
4. At the hearing on 5 March 2025, the Applicants were not legally represented. As the 2nd Applicant is a minor, the 1st Applicant representing her was advised by this Court of the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. Their leave application was adjourned to be heard after three months to enable her to make the arrangements.
5. The Applicants were unrepresented at the adjourned hearing on 11 June 2025. The 1st Applicant said she had obtained the forms for making legal aid application but had not applied. She said she was not willing to engage a private lawyer. Having regard to the underlying objectives stated in Order 1A rule 1 of the Rules of the High Court, in particular the need to ensure that a case be dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy, the Court did not consider it appropriate to make a further adjournment to enable her to apply for legal aid. The Court then explored with the 1st Applicant her ability in representing the 2nd Applicant. She confirmed that the 2nd Applicant’s claim is based on the same facts as hers. She said as she could represent herself and present her case to the Court, she felt she could represent the 2nd Applicant and present her case as well. Having considered the applicable law, the amended leave application, the issues raised, the fact that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1st Applicant’s expressed intention not to seek private legal representation, the Court was of the opinion that despite the lack of legal representation, their leave application may be justly determined without prejudicing the interest of the 2nd Applicant. The Court therefore considered the lack of legal representation a mere irregularity, which would not have the effect of nullifying the proceedings. After giving the Applicants half an hour’s break, the Court proceeded to hear their leave application.
The Applicants’ case
6. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the 1st Applicant for herself and for the 2nd Applicant with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, the 1st Applicant claims, if returned to the Philippines, she and the 2nd Applicant will be harmed or killed by her husband because she had been unfaithful to him and the 2nd Applicant was the fruit of her infidelity.
7. The 1st Applicant was born and raised in San Carlos, Tarlac City, the Philippines. She and her husband married in 1994. They have two children together. Her parents, one sibling, husband and children are living in the Philippines while three other siblings are living in Hong Kong. She had 12 years of formal education and had ten years’ experience working as a salesperson and checker in the Philippines and as a domestic helper in Hong Kong.
8. The 1st Applicant claimed that her husband had subjected her to domestic violence from 2003 to 2008. He assaulted her up to three times a year. He slapped and punched her with bare hands. Sometimes he waved a knife and threaten to kill her and her children. She self-treated the injuries at home. In 2003, she sought assistance from the Barangay Captain in her district twice. The Barangay Captain acted as a mediator and verbally asked her husband to stop the physical abuse against her but took no further action because the 1st Applicant did not want to put her husband in jail.
9. When she was working as a domestic helper in Hong Kong in 2011 and 2012, she returned to the Philippines for a month each year and stayed with her husband. On her return in 2011, she had arguments with her husband. During the occasion in 2012, she and her husband argued over her decision to return to work in Hong Kong. Her husband punched and slapped her with bare hands. She and her children went to her parents’ home and stayed there for a week until she returned to Hong Kong. She did not report the incident to the police and did not seek medical treatment. She maintained contact with her husband about the care arrangement of her children in the Philippines.
10. Shortly before giving birth to the 2nd Applicant, her husband learnt from her parents and children that she was impregnated by another man in Hong Kong. On 15 May 2018, he confronted her over the phone. He said he would never accept her baby and threatened to kill her and her baby, if they returned to the Philippines. She also learnt from her mother that her husband uttered the same threat to her mother on the same day. She still maintained contact with her parents, who told her that her husband had gone to their house once and threatened to kill her and her baby.
11. The 1st Applicant does not believe that state protection is available, as her husband could control or influence the authority in the Philippines through his uncle-in-law who was a District Councillor in Tarlac City. She does not think internal relocation feasible, as her husband was from a wealthy family and could hire a killer to kill her or a private investigator to locate her throughout the country.
The Board’s finding in the Decision
12. The 1st Applicant testified before the Board in their appeal. The Board found that there were aspects of the 1st Applicant’s account which were lacking in detail, exaggerating, inherently inconsistent or inconsistent with credible country of origin information (“COI”) or other objective information, while the other aspects of her evidence were implausible or simply defied logic. She alleged that she had been assaulted regularly by her husband over the years, but she was unable to produce a single piece of evidence to substantiate her claim, particularly on the extent of his violence. Although the Board accepted that she had had arguments with her husband leading to her seeking assistance from the Barangay Captain, there was no indication that her husband was so violent as to have caused severe pain to her or threat to her life.
13. The Board was not persuaded that her husband came from a wealthy family. According to the 1st Applicant, her husband is a blue-collar worker, such as an electrician or farmer. He now operates an internet café. He resides in San Carlos, which did not appear to be a residential area for rich people. Her husband’s father died long ago. His mother worked as a domestic helper in the Middle East before remarrying to someone who worked in the US army. She is now living off a pension since her second husband’s death. His sister who migrated with his mother to the US supported herself through employment. The background of her husband’s family members is inconsistent with her claim that her husband’s family was wealthy.
14. Previously, the 1st Applicant claimed that her husband’s uncle-in-law was a District Councillor in Tarlac City. However, she told the Board that he was only a District Councillor in one of the barangays in Tarlac City. Despite efforts, the Board could not locate any reliable COI to confirm either of her allegations, nor was she able to produce any COI to support the same. As such, the Board was not convinced that her husband’s uncle-in-law was a District Councillor in the Philippines, and that he was in any way influential within the government of the Philippines.
15. On the evidence, the Board accepted that although the 1st Applicant’s husband could be described as hot-headed, he was not a man of extreme violence. He may have assaulted the 1st Applicant before, but he never caused her severe harm. His past behaviour indicated to the Board that he is not the kind of people who is capable of killing or causing grave harm to anyone including the Applicants.
16. On the basis of the COI, the Board was satisfied that despite the deficiency and widespread corruption in the Philippine government, the government has taken steps to improve the situation and to combat corruption. Having rejected the 1st Applicant’s evidence that her husband’s uncle-in-law was a District Councillor in Tarlac City, the Board considered reasonable state protection would be available to the Applicants, if they returned to the Philippines. It further found that if they would be at risk, such risks are localised in the 1st Applicant’s home area and may be mitigated by internal relocation.
17. In conclusion, the Board did not consider there are substantial grounds for believing the Applicants would be at real risk of any proscribed harm from the 1st Applicant’s husband if they returned to the Philippines. Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicants are not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed their appeal.
Legal principles applicable to judicial review
18. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
19. The 1st Applicant did not advance any grounds of appeal in the Form 86 nor in her supporting affirmation. She stated in the affirmation that she did not agree with the Board’s Decision and reiterated that her life would be in danger in her home country. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to the Philippines. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.
20. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The 2nd Applicant’s claim is hinged on the 1st Applicant’s. The 1st Applicant has not advanced any child-specific risks on behalf of the 2nd Applicant. The only source of harm for both Applicants is from her husband and no one else. The 2nd Applicant’s claim stands or falls with the 1st Applicant’s.
22. The Board analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible COI. It did not find the 1st Applicant entirely credible and reliable. It only accepted part of her evidence, such as that her husband is hot-headed, had quarrelled with her and assaulted her, that they quarrelled about her returning to work in Hong Kong, that she had extra-marital affair and gave birth to the 2nd Applicant. It rejected her evidence that her husband came from a wealthy family and that he is a person who is capable of killing another. It gave full reasons for its finding. It was on that basis that the Board found the Applicants would not be subject to any risk of harm from the 1st Applicant’s husband and hence failed to establish the factual basis to support their claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, the Applicants’ leave application is refused.
Dated the 29th day of July 2025
| |
( Seline Sze ) |
| |
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 29/07/2025
Guanzon Melanie Tolentino
Balles Ezra Jelaine
Applicant’s ref. no: |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15487/19/2/6/F1003
USM 15488/19/2/7/F1004
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 5083-4/18 (Formerly RBCZ 10926-7/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|